It Might Not Be Over for DAPA: New Legal Strategy Could Protect Millions of Undocumented Immigrants from Deportation

The Supreme Court’s split decision on U.S. v Texas left the lower court’s preliminary injunction of blocking of DAPA in place

Two lawsuits have been filed in district courts of New York and Illinois, challenging the reach of the preliminary injunction

If the district courts rule in favour of the plaintiffs, the cases would set a precedent that could protect millions from deportation

In June, the Supreme Court deadlocked over a major federal immigration program that aimed to protect millions of undocumented migrants from deportation. The 4-4 vote left the lower court’s preliminary injunction of blocking Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in place.

At the time, many considered it to be the end of what could have been one of President Obama’s central legacies. Now, however, the preliminary injunction is being challenged by two lawsuits, the results of which could protect millions of people from deportation.

2 Lawsuits Challenging U.S. v Texas

In August, Martín Jonathan Batalla Vidal filed a lawsuit in a New York federal court contending that the preliminary injunction issued by Judge Andrew S. Hanen in Texas does not apply to him as a resident of Queens. This week, José Lopez filed a similar lawsuit in the U.S. District Court for the Northern District of Illinois. The two lawsuits ask the courts to declare that Hanen’s nationwide injunction is actually limited to the three states – Texas, Mississippi and Louisiana – under the 5th Circuit.

Judge Nicholas G. Garaufis of the New York district has expressed sentiments that seem to be in favour of Vidal’s argument. In a pre-motion conference in September, Garaufis announced that he had “absolutely no intention of simply marching behind in the parade that’s going on out there in Texas, if this person has rights here.”

A Legal Strategy that Could Protect Immigrants from Deportation

In an email interview, David Leopold – former president of the American Immigration Lawyers Association – states that “New York and Illinois challenges to Hanen’s Texas injunction are a natural consequence of the legal vacuum left by the short-staffed Supreme Court’s failure to rule in U.S. v Texas earlier this year.”

He adds, “As a legal strategy challenging the Republican injunction outside the 5th Circuit is smart and effective because it uses a potent legal argument to ask a simple question: Why does a federal judge in Brownsville, Texas think he has the power to make decisions affecting the rights of millions of immigrants across the country who’ve never set foot in his courtroom and over whom he has no jurisdiction?”

A legal strategy challenging the preliminary injunction could protect millions from deportation, but it does pose serious legal questions without much – if any – precedent. If Garaufis rules that the preliminary injunction does not apply in his New York district, then the federal government will find itself in the uncanny position of disobeying one of two judges – and whichever judge they cross could very well hold them in contempt.

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